Attorney at Law

When an individual passes away, their estate must go through probate proceedings, during which the probate court must validate the will before any asset distributions can occur. However, this process is not always smooth, and conflicts may emerge, especially if there are doubts surrounding the validity of the deceased's will. This guide will discuss the basics of will contests, including who may contest a will, the grounds for contesting them, and the processes and procedures involved. 

1. Determine whether you have standing to contest the will, and your grounds for contesting it 

Feeling wronged or unfairly treated doesn't grant you the right to contest a will. To contest a will, you must prove that you are an interested party in having the will invalidated (have “standing”), and that you have valid grounds to contest it. Let’s examine these in more detail. 

Standing refers to your legal right to challenge a will, an amendment to a will, or a specific provision or bequest in a will. To establish standing, you must be either:

  • A beneficiary in the will being probated.
  • An heir under state intestacy laws. 
  • A beneficiary under a previous will that was subsequently superseded by the current one.

Grounds refers to the legal reasons for which the probate court may invalidate a will. Grounds for invalidating a will include: 

  • Fraud: Fraud occurs when a person intentionally deceives another with the purpose of causing damage. In the context of wills, this could involve manipulating the testator into changing the will or even creating a fake will.
  • Forgery: Forgery refers to when someone falsely alters or creates a will with the intention to defraud. This could involve changing the terms of a will or faking a signature.
  • Undue influence, coercion, or duress: These occur when a person uses their influence or pressure to force or manipulate the testator into making a will or changing a will in a manner that does not reflect the testator's true intentions. 
  • Lack of capacity: This refers to when the person who made the will didn't have the mental capacity to understand what they were doing. They might not have understood the value of their property, who should logically be their beneficiaries, or what it means to make a will.
  • Lack of testamentary formalities: This applies if the will wasn't executed per the specific legal rules required in that state for a valid will, such as not having the correct number of witnesses or not being signed correctly or dated. 

2. Initiate the proceedings

The first step in contesting a will is filing a petition with the probate court. In the petition, you must state the reasons for which you have standing to contest the will and the grounds for contesting it. After filing the petition, the executor and other interested parties must be notified and served copies. After this is done, the parties will have the option to, and likely will, submit a response addressing your claims and attempting to refute your allegations.

3. Participate in discovery, motion practice, and pre-trial proceedings 

After the process is initiated and before the contest may go to trial, there is a pre-trial period where the parties engage in discovery, motion practice, and pre-trial hearings.

  • Discovery. Discovery is a legal process during which each party examines the evidence and reviews the opposing party's claims. During discovery, both parties may request documents, depose witnesses, and gather other evidence to support their case. If, for example, you're contesting the will based on the testator's mental capacity, you may seek medical records or depose healthcare professionals who interacted with the testator around the time the will was executed.
  • Pre-trial motion practice: Before the trial commences, parties involved in a will contest often engage in pretrial motion practice. These are formal requests (or "motions") made to the court seeking specific rulings or actions. Typical pretrial motions in will contests include motions to dismiss (arguing that the case lacks legal grounds to proceed), motions for summary judgment (arguing that the facts are undisputed and the court can decide the case as a matter of law), or motions to exclude certain pieces of evidence or witness testimonies, for example, if certain testimony was based on hearsay.
  • Pre-trial hearings: Hearings are formal proceedings whereby the parties can have the probate judge rule on specific issues that arise during the discovery process and can influence the outcome of the case at trial. For instance, a hearing might be held to determine the admissibility of a piece of evidence, to decide on a motion, or to address disputes arising during the discovery process.

4. Carry your burden of proof at trial 

Unlike criminal proceedings, where the burden of proof is “beyond a reasonable doubt,” in civil proceedings, the burden of proof has a much lower threshold. This differs by state but is usually something like a “preponderance of evidence” or something similar that essentially means that you must prove to the probate court’s satisfaction that it is more likely than not that the will should be invalidated on any of the grounds listed above. 

Once all the evidence has been submitted, the probate court will make its determination and issue a ruling and order on the outcome of the case. One potential outcome is the complete validation of the will. In this scenario, the court determines the will is valid, and the estate is distributed according to the will's terms. 

In some cases, the court may partially validate the will and adjust certain parts. This could happen if only specific provisions of the will are contested and the court finds those objections valid. In this instance, the remainder of the will still stands, but the contested sections may be modified or disregarded.

Finally, the court may completely invalidate the will. This usually occurs when the court determines that the entire will is invalid due to factors such as fraud, undue influence, or a lack of testamentary capacity. When a will is invalidated entirely, the estate is distributed according to the laws of intestacy, which may not align with the deceased's wishes.

5. Determining whether to appeal 

If you are not satisfied with the probate court’s decision, you may want to file an appeal with a higher court. An appeal allows parties to challenge the probate court's decision regarding a will contest. Unlike a trial, where questions of fact are determined based on the evidence, an appeal focuses on potential legal errors made during the initial proceedings. 

In the context of will contests, grounds for possible appeal would be that the probate court was erroneous in its interpretation of the law, improperly admitted or excluded evidence, or reached a decision that wasn’t supported by the evidence.


A word of caution before we finish: many wills have “no-contest” clauses that can severely penalize you if your will dispute is unsuccessful. No-contest clauses provide that you can be cut out of the will entirely should you contest a will and fail. They are mainly used as a way to deter disgruntled beneficiaries from contesting the will when they stand to receive a greater portion of the estate under intestacy laws than what they were bequeathed in the will itself. That said, there are significant jurisdictional variations regarding whether, how, and to what extent those clauses will be enforced. 

As you can see, there are many complex issues and proceedings involved in contesting a will, and therefore having the assistance of a skilled attorney with extensive experience in practicing Trusts & Estates law can be invaluable to anyone considering contesting a will. Through AAL’s directory, you can find many attorneys who will provide you with advice and advocacy toward achieving the best possible outcome for you and your case.

Ask a Lawyer

Ask your own question and get advice from expert attorneys
Ask Question

Featured Elder Law Lawyers

Jamie L. Gingold, PC

23 years in practice
Bankruptcy, Elder Law
View Profile

Wells Law Firm, P.C.

16 years in practice
Adoption, Child Custody, Child Support, Divorce & Family Law, Divorce Law
View Profile

Law Office of David L. Scott

28 years in practice
Criminal Defense, Divorce & Family Law, Divorce Law, Elder Law
View Profile

D&O Law Group, LLC

15 years in practice
Criminal Defense, Divorce & Family Law, DUI Law, Personal Injury
View Profile

Law Offices of Ricardo J. Mauro, P.C.

29 years in practice
Auto Accidents, Personal Injury
View Profile

Law Offices of Robert F. Julian

47 years in practice
Auto Accidents, Construction Injury, Personal Injury, Wrongful Death
View Profile


Are you looking for an attorney? Do you have questions about a legal case you are facing? Contact us now and we will put you in touch with a lawyer for free.
Attorney At Law is changing how clients connect with lawyers. By providing an innovative platform to lawyers who want to expand their practice’s reach, AAL is bringing law practices into the future.
6142 Innovation Way
Carlsbad, California 92009
Some of the content of this website may be considered attorney advertising under the rules of certain jurisdictions. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.
crossmenuchevron-upchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram